Interview by Harish Narasappa,
Shivabhushan Hatti, and Kavya Murthy
Earlier this
year, the DAKSH team interviewed ex–Chief Justice of India, M.N.
Venkatachaliah. A renowned luminary of the Indian courts, Justice
Venkatachaliah is well known for his immense contributions to the field of law
in India.
His education was in the
former State of Mysore with a Bachelor's degree in Science and a Bachelor's
degree in law from the University of Mysore. He commenced his practice of law
in the year 1951 and was appointed as a Permanent Judge of the High Court of
Karnataka in 1975. He was appointed as a Judge of the Supreme Court of India in
the year 1987. Justice M.N. Venkatachaliah served as the 25th Chief Justice of
India for about twenty months and retired from the Supreme Court in the year
1994. He has also served as the Chairman of the National Human Rights
Commission and headed the National Commission to review the working of the
Constitution. Justice M.N. Venkatachaliah is also a Padma Vibhushan awardee.
Now 85 years old, Justice
Venkatachaliah lives in South Bangalore with his family. Amicable and
welcoming, he is frequently busy with visitors. It was a fascinating experience
to meet a mind so sharp at 85, and so full of insight.
The DAKSH team had
prepared a set of questions that emerged from our work at The Rule of Law
Project, ranging from an interest in Justice M. N. Venkatachaliah’s own history
as a Chief Justice of India and in our data analysis dismantling or building
upon commonly held assumptions on judicial delay. Justice Venkatachaliah's
commentaries have given us useful insight into the number of ways in which the
problems of case-flow management in the various tiers of the courts can be
attended to.
Justice Venkatachaliah
addressed our questions with the complexity necessary for a close look at the
problem of judicial delay. He opened the issue by pointing out how a singular
number of pendency – now held to be 45 lakh cases in the High Court, and 2.8
crores in the lower courts – is essentially meaningless unless seen at tandem
with case–flow management, and litigation rates in India.
Interviewer
Sir, the first stage of
The Rule of Law Project was to see how to collect data on actual pendency.
In looking through what kind of data is actually available, we ran through
various stages of research. We looked closely at the Supreme Court’s Court News
that comes out every quarter with data on what number of cases are currently in
process in different High Courts. This, though interesting, does not offer deep
information as to the extent of the delay, the life cycle of an entire case, or
how many days does it actually takes for either a Writ Petition or a matter in
the Civil Court to reach conclusion in each court.
The central premise of
our work asked the question of how we can get a sense of the life cycle of
cases. For example, if you take any Writ Petition or appeal pending before a
High Court, when was it instituted and how long does it take? For how much time has it actually been heard
in court? What is the best way of cracking the system, and generating our own
data without relying on the way in which data in maintained in the system?
The answer came in the
unusual form of using the daily cause list, used for litigants and lawyers,
with which we have now built an automatic software that downloads the data and
parses it into a standardised table. Since most High Courts have electronic
databases, the software pulls down the entire case history. So, in a short span
of about three months, we have been able to get started on collecting data for
about six High Courts. We will soon extend this to all High Courts and selected
District Courts.
One of the questions we
have wanted to ask you, sir, is to do with causes of judicial delay. What are
the primary causes? What is the significance of judge: population ratio?
M.N.V
Looking
at the large numbers of pendency, staring at it and saying it is a big mess, is
the moral equivalent of a defeat. But it’s really not such a big mess, because
we as a country are under-litigated. This country is not over-litigated. 55 per
cent of the High Courts’ 34 to 37 lakh* cases are in the same 5 states. The rest
of the states have a balance of this number.
I
have often said that in this country the population capable of litigation and
which has some stake in the litigative process is very small. Take the entire
population of Japan – for a million people there are 150 judges, whereas in
India there are 11. This means nothing. For example, if you increase judges in Madhya
Pradesh, 50 per cent of the Courts there will have no work at all. There is no
litigation, and people have nothing to litigate about.
In the US, for a population of a 1000, in a year
there are 338 litigations. Of various kinds, all of them are resolved. In
Singapore, it is 89 litigations. Income level is the same, education level is the same. Why
is it that Singapore has only 89 and the US 338? It is a controlled society. In
Kerala, it’s 29. In
Jharkhand, it is 4. So, you can see that there is no docket explosion here.
In
speaking of pendency, it is all about lower courts. If you take care of lower
courts, other courts will take care of themselves. This is where the speed and
quality of the justice delivery system must be improved. That is very
important. Judges in lower courts require periodic orientation courses – not highly
theoretical studies of philosophy of law but they must have working experience
of particular jurisdictions.
Now
if we classify the cases, 98 per cent of cases fall into 14 categories. If you
take one category, there are 4 or 5 cases which lay down the principles
governing that jurisdiction. There are 2 or 3 cases which show the exceptions
to the rule and the rest of them are all applications of these principles. The
art and science of adjudication is very important education.
Interviewer
How can case flows be managed?
M.N.V
There
are about 3 crore arrears in the subordinate courts. 80 per cent are criminal
cases…and 20 per cent are civil cases. When they come to the High Court, it’s
about 36–37 lakhs.
In
Europe, they have a new bank and an old bank. The new bank will deal with the
current business so that the mucky past won’t affect the transactions in the
future. From a particular cut out date, you separate the arrears. This is what
needs to be done in the courts. Everything should be reduced to its component
parts and each component attended to individually. At the core of case
management must be the idea of bifurcating old cases and new cases.
One
day in Bangalore, 90,000 cheque-bounce cases were filed in 1996 or 1997 before
the High Court! I’ll explain how this happens.
There
are phone bills, motor vehicle claims, and motor vehicle installments, for which
cheques are taken in advance. At one point of time, this created a parallel
build–up of cases in the courts. Judges noticed this build up. Here in
this country, you should replace the time transactions of Negotiable
Instruments and only issue cheque books and Negotiable Instruments if a client
establishes his credibility. Formerly, Savings Banks would issue withdrawal
forms for most clients, and only issue Negotiable Instruments after
establishing the credit–worthiness and credibility of clients with Fixed
Deposits and those showing sufficient transactions. If you deposit Rs.100 in
the bank account and withdraw Rs.20, what is the purpose of printing cheque
books?
Why
doesn’t somebody think about it? It is as simple as establishing credibility
and credit–worthiness of a client. If
you go to a banker, he takes your promissory note, cheque, and signature, and
this has become a beautiful instrument of harassment of the debtor by bankers.
This is a load on the judicial system. We must weed out these things. Lok
Adalats are doing something in these cheque-bounce cases. As it appears to me,
this system will not be able to handle this.
You
know, in the Supreme Court, one case appeared in the Cause List 141 times! 141
times! And I think that is going to be the average hereafter. See, cases keep
on appearing.
I
think that there should be an assembly line, along the lines of the time slots
prescribed by the Civil Procedure Code. You have to build case flow management,
that is known as a Six Sigma System of Management. For e.g., a plaint of filing
a suit presently involves physical activity. A plaintiff needs information
about counters and location. There should be a system that specifies what to do
on Day One of filing a case. This procedure should be listed for Day Two, Day
Three and so on. This assembly line was worked out in the Bedfordshire County
Criminal Cases.
For
example, this assembly line can be put in place for new litigations, say from
01.01.2016. Establish and define all the steps in a litigation. First is the date
of institution. Then there is scrutiny in court, or objections. The office
objections must be cured, registration numbers issued. This needs to be done
over a period of three days and electronically controlled. Notices can then be
issued. You must amend the rules to say that email communication is a
presumptively valid service. There needs to be some means of developing how the
courts could deal with the internet. A litigant can then have a month’s time to
file a written statement, according to the Civil Procedure Code. To be
pragmatic, these time schedules can be doubled: give everything double the
time.
There
are also the problems of hearings and adjournments. The number of non-productive
adjournments is simply mind-boggling! Why not create a 30 day electronic
reminder – if a statement is not filed in time, why can’t a communication be
sent to the litigant as a reminder?
Two
weeks before a hearing, a reminder can also be sent to the lawyer, that if you
do not file by a certain day, your case expires. This is the kind of innovation
you need. Then, after the full statement is filed, if there are any
interlocutory matters, they go vertically in the court. The whole thing is
removed to another forum immediately.
That
forum, I call the Auxillary Adjudicative
Support System (AASS). Within this forum, you can see what consensual
issues can be arrived at between parties. First you see if a matter is amenable
for settlement. Reduce the area and scope of litigation This AASS must have lawyers;
unless lawyers cooperate, no system will work. It has to be a system that is
created jointly by the High Court and the Bar Council of India, with a retired
judge presiding. The forum can act as a commissioner to record evidence.
Prepare the whole matter, and place the brief before the judge. The first stage
before a judge is the filing, the second is the completion of reading, and the
third is a stage of framing of issues. Fourth is evidence. The AASS can negotiate
this arena with the parties: how many adjournments each side requires for
completing their side of the evidence. The adjournments can be granted
generously, so that the parties are committed to it. Cross-examination with a
formal witness can be done before this system itself. If the judge is given a
brief, more slots will be made available in the system because older cases will
be shifted into the AASS.
There
is one other thing that I had suggested long time ago. In the event of the
death of a plaintiff or defendant, it should be made mandatory to nominate
somebody as a nominee who will continue with the case. I have calculated that
wherever there is a death, 20 per cent is taken for serving the legal heir. The
nominee should continue this litigation for whatever it is worth.
A
similar system needs to be devised so that there is a self-liquidating
mechanism for arrears. This can be tried in one complex, one place in North
India as a pilot process, or as per court complexes with over fifty courts that
account for fifty per cent of all litigation. It is said that of 35 lakh cases
in the High Courts, 50 per cent are in 5 states.
The
management of these cases takes immense manpower and should be done not by
lawyers. Management of such systems and scrutiny of returns must be handed out
to companies like Infosys. I had also suggested that Customs Clearances must be
handed out to institutions like Infosys and TCS. There are only two things
there, classifications and valuations, and it needs to be done mechanically.
There
are other cases that cause a load on the judicial system, such as the ordinary
ejectment suit, when the relationship between the landlord and tenant is
admitted to court. These kind of suits also go all the way to the Supreme
Court! What nonsense. If you suppose a lease commences on the 1st of January,
does it expire on the 31st of December? When does the holding over a tenancy
commence, on the 1st of January or the 2nd? Such matters have been known to go
on for three months. Can you imagine what’s happening? I mean, it is something
shameful that we have done with our citizenry!
Even
in the Supreme Court. It should be the case that the Supreme Court first
addresses cases that are older than five years. The court will come to a stage
where you arrive at cases that are four years old, or three. However, this will
not work unless you also deal with the present set of cases. Surprisingly, in
the Supreme Court, if you look at it, 80 per cent are criminal cases. And when
you come to the High Court, 80 per cent are Civil Cases.
The
large number in this bogey of 35 lakh pending cases gets over if you have this
self–liquidating system, even in the district court level. This is a very
complex system you have to do to be controlled electronically.
Interviewer
Some of your initiatives in the
Supreme Court of India brought down the number of pending cases from 2 lakhs to
about 16,000 cases. Can you please give us more details about these
initiatives?
M.N.V
Yes, in my
tenure in the Supreme Court we brought the arrears to down to 16,200 cases. See,
Interlocutory Applications were being numbered independently, like Civil Miscellaneous
Petitions. In each case, there were at least two Interlocutory Applications. These
numbers were daunting and were oppressing the statistics. So they were taken
away. These were a class by themselves. 25,000 cases had been filed in the
early 1960s, taken back, and not filed again. So we had to amend the rule to
say that if they were not re–filed, they expire. This reduced our arrears by 35,000
cases. Secondly, the Civil Miscellaneous Petitions were discontinued, and there
too, the number came down. Ultimately, the core cases came down to 16,200 on 15th
February 1998. From 1,87,000 cases in 1991, the total number of cases in the Supreme
Court was reduced to 16,200. We added another 3,60,000 over the next eight years,
with an average of 40,000 per year.
I had also
attempted to initiate a programme in the Supreme Court after my retirement. My
idea was that the court should have a running Constitutional Bench from 1st
January to May. There are 112 matters referred to in the Constitutional Bench
in total. In the High Courts, a large number of cases depend upon the outcome
of these matters. Cases should be fixed for the whole period. At the end of the
first term, two judges should move to the appellate division. From the opening
to the dusshera vacation, the other bench will continue.
There is no
pressure of a lateral entry of cases.
Then, in
the last term, and as far as other courts are concerned, cases are fixed. There
is no question of repeating the cause list 141 times! Cases should come in only
once, and the list should be completed within time.
* The current statistics as per Court News deems that there are 45 lakh pending cases in the High Courts.
